The Foundations of a Motion to Suppress

If I had a dollar for every time someone called to tell me their rights were violated, I wouldn’t have to work; I could just keep answering the phone and make a dollar here, dollar there. Part of my work as a criminal defense attorney is to challenge the constitutionality of a government search. Its one of my favorite things to do (boring, huh?). What we’re going to examine today are the very foundations of a challenge to a government search.

The Fourth Amendment is all about privacy rights. A government search will violate the Fourth Amendment prohibition against unreasonable searches only if a citizen can first prove that he has a reasonable expectation of privacy in the thing or place searched. When defending a criminal case, it is not enough to just stand at the podium and ask the court to suppress all the state’s evidence because my clients rights were violated. We “ask” the court to do things through motions. If we’re alleging an illegal search and seizure, the written form of this request is known as a Motion to Suppress.

The problem is, filing a Motion to Suppress is only the beginning. Practice Tip: there are different theories on how detailed a motion to suppress should be. Many defense attorneys file bare bones motions, so that the state is not tipped off as to what specific legal issue might be argued at the hearing. I disagree with that approach. You want to provide the court, and the state, with the bulk of your analysis in the motion so that everyone can prepare to argue the finer points. This is especially true if law enforcement has already articulated their position at depositions. Without depositions, I can see how a detailed motion might “influence” a witness to say things on the stand that will hurt the motion. Of course, this is why we have depositions, to lock the witnesses into their testimony.

Anyway, a Motion to Suppress hearing is conducted with live witnesses, and it is the defendant’s burden to start calling witnesses. No matter how unconstitutional a government search may appear to be on its face, it is still the defendant’s burden to first establish that there’s a privacy interest at stake. The very core of the Fourth Amendment is privacy rights. So, to win a Motion to Suppress, it must be established (typically by the Accused) that the defendant had a privacy interest in the item searched and seized. Alright, to see how this issue plays out, let’s examine Henderson v. State, 38 Fla. L. Weekly D 1786 (Fla. 2d DCA 2013).
Henderson pled guilty to three counts of criminal use of personal identification information, and reserved his right to appeal the denial of his Motion to Suppress. Things started going south for Henderson after he booked a room at the Hampton Inn through Travelocity. In the middle of the night, Travelocity calls the Hampton Inn to inform them that Henderson’s credit card did not go through. In fact, it was stolen. Ops. The front desk at the hotel called Henderson, telling him to come down and pay for the room. He said he would in a minute, but after several minutes went by no one showed up to pay for the room. I know, its shocking. Naturally, the front desk then calls the police, they knock on their door for several minutes–no one answers. The hotel manager opens the door to the room, and it’s empty. No toothbrushes, no clothes, no personal items. But wait. There’s an iPad. And you know how the police are with your electronics, as curious as Young Indiana Jones when a big stone moves to reveal another chamber. Cops love exploring your stuff, especially electronics. In this case, the exploration of the iPad revealed a list of several names with credit card numbers next to them. In a not so brilliant move, Henderson then called the hotel later to request the return of his iPad. As you might expect, this eventually led to the police meeting up with Henderson.

So, did the police seize this iPad from the room illegally? Did they search the iPad illegally? Good question, and the appeals court never answers these questions, because a few basic things were not done in the lower court. And, that’s why I like this case, it tells you how not to handle a Motion to Suppress.

The appellate court first denies the appeal because Henderson never had the lower court rule on whether or not his Motion to Suppress was “dispositive”. Yes, this is a technicality, but to overcome this just ask the judge at the suppression hearing to make a finding that the motion is “dispositive”. In other words, the appeals court will not entertain every issue a defendant decides to appeal–only important issues. If a defendant was denied the right to use the restroom during his suppression hearing–such a ruling will not be entertained by a higher court, its not dispositive. You can’t appeal everything, only issues that will make or break the case. And, not every Motion to Suppress makes or breaks the case. Henderson’s motion regarding the iPad was not “dispositive”, because there was lots of other evidence that would have convicted Henderson; including a confession and his dealings with Travelocity. So, the fact that suppressing the iPad evidence wouldn’t have effected the outcome is one reason the higher court denied the appeal. And, there’s a second reason.

Henderson never testified that he had any sort of privacy interest in the iPad. Suppression emerges from our right to privacy. Sure, if Henderson took the stand and told the judge that he forgot the iPad in the hotel room, and it was his iPad, and he doesn’t share it with the general public–that may have been enough to establish that his own Fourth Amendment rights were violated. The appeals court noted that the Motion to Suppress hearing included officer testimony that Henderson admitted the iPad was his, but such testimony is not enough to establish a reasonable expectation of privacy. I’ve seen iPads used by local bands to have people sign up for mailing lists, or what have you. These iPads are used by the public, and as such, the band could not claim any expectation of privacy after handing it to complete strangers who show up at their merch table. Henderson needed to tell the court that this iPad was used exclusively by him, it had his banking info and passwords on it, and he expects its contents to remain private. Without such testimony, the government’s search of the iPad does not violate the Fourth Amendment.